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Michael Stewart v. Order Granting Defendants' Motion For Summary Judgment

December 6, 2010

MICHAEL STEWART, PLAINTIFF,
v.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT CITY OF SAN DIEGO; PAM ROWLETT; SCOTTY ODOM; JOSE CONDE; JR COPELAND; J KELLY; MICHAEL WALLACE; ADAM SCHROM; DANIEL STANLEY; DENNY KREMER; KEVIN HOLYFIELD; JOHN HUYS; THOMAS MCGRATH; STEVEN WITT; MICHAEL BROWN JR.; DONA HUFFORD; WALTER J. RUSSELL; GLENDA PATRICK; A. DOHERTY; WENDY DAVISSON; DOUG SENSABAUGH; AND DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

Plaintiff Michael Stewart, proceeding pro se, filed a Second Amended Complaint on August 9, 2010, alleging Defendant Officer Pam Rowlett ("Rowlett") violated his constitutional rights when (1) she searched him and his car without probable cause on the morning of Saturday, June 14, 2008 [Second Amended Complaint ("SAC"), filed August 9, 2010, Doc. 54, p. 32)], and (2) she cut in front of his car while driving near the intersection of National Avenue and 16th Street on February 23, 2009, causing him to crash and suffer significant injuries [SAC, Doc. 54, p. 30).] Plaintiff further alleges Defendant Police Officers Scotty Odom, Jose Conde, J.R. Copeland, J. Kelly, Michael Wallace, Adam Schrom, Daniel Stanley, Denny Kremer, Kevin Holyfield, John Guys, Thomas McGrath, Steven Witt, Michael Brown, Dona Hufford, Walter Russell, Glenda Patrick, and A. Doherty (collectively "Other Officers"), as well as City Attorney Wendy Davisson ("Davisson") and Investigator Doug Sensabaugh ("Sensabaugh"), engaged in a conspiracy to cover-up the February 23, 2009 matter by submitting a false police report and incident report. [Id.]

Defendants now move for summary judgment on all of Plaintiff's claims. For the reasons explained below, the Court GRANTS Defendants' motion.

Factual Background

1. The Stop and Search on June 14, 2008 On the morning of Saturday, June 14, 2008, Plaintiff was sitting in his car on the corner of 14th and Imperial Avenue, adjacent to Father Joe's Village in the East Village of downtown San Diego. [SAC, p.3 (Doc. No. 54, p. 32)*fn1 .] On that date, Defendant Officer Pam Rowlett ("Rowlett") was assigned to the Central Division as a uniformed police officer, in a marked patrol car, patrolling the area near 14th and National Avenue.*fn2 [Declaration of Officer Pam Rowlett in Support of Motion for Summary Judgment ("Rowlett Decl.) ¶ 5.] As part of her duties, on prior occasions, she had observed people buying and selling drugs from persons sitting in cars in this area. [Id.]

In the early morning hours for several days prior to June 14, 2008, Rowlett observed Plaintiff sitting in a parked late model Infinity Q45, registered to Plaintiff. [Id.] Rowlett saw people walk up to Plaintiff's car, quickly exchange items with him, and then quickly walk away. Alternatively, people would quickly get in and out of the car and then leave the area. [Id.] These actions were consistent with persons who bought and sold drugs in that area. [Id.]

At about 10:40 a.m. on June 14, 2008, Rowlett observed Plaintiff parked at a lot, south of Imperial Avenue on 14th Street. [Rowlett Decl. ¶ 6.] Rowlett was aware Plaintiff had a criminal record for the use and sale of controlled substances, and also had information from other officers that Plaintiff was involved in selling drugs in this area. [Id. ¶ 7.] Rowlett observed a black male walk up to Plaintiff's open car window, and saw Plaintiff swiftly transfer a small package in exchange for another small item she believed to be cash. [Id. ¶ 8.] Based upon her training and experience, Rowlett believed Plaintiff had committed a hand-to-hand drug sale transaction. [Id.¶ 9.] Rowlett approached Plaintiff while he was still in his car and told him she observed what she believed to be a drug sale. [Rowlett Decl. ¶ 10.] Plaintiff denied involvement with drugs. [Id.] Rowlett arrested Plaintiff under Cal. Health & Safety Code § 11532(a), loitering for drug activities, and placed him in handcuffs. [Id. ¶ 11.] Rowlett searched Plaintiff for drugs but did not find any. She did find cash in Plaintiff's pockets. [Id. ¶ 12.] Rowlett issued Plaintiff a citation, and then released him. [Id. ¶ 13; San Diego Police Department Notice to Appear dated June 14, 2008, Exhibit G to Defendants' motion.] Plaintiff asserts Rowlett also searched his car during this interaction. [SAC, Doc. 54, p. 32; Declaration of DeWayne Wilson in Support of Plaintiff's Opposition ("Wilson Decl."), Doc. 68, p. 155; Declaration of Ricardo Donaldson, Doc. 68, p. 156; Declaration of Janene Castillo in Support of Plaintiff's Opposition ("Castillo Decl."), Doc. 68, p. 157; Declaration of Kirk Reddick in Support of Plaintiff's Opposition, Doc. 68, p. 158.] Rowlett denies she or any other officer searched Plaintiff's car. [Rowlett Decl. ¶ 12.] As explained below, this dispute of fact is not material for purposes of summary judgment.

Immediately after Rowlett released Plaintiff, Plaintiff contacted Rowlett's supervisor, Sergeant Thomas McGrath, about the contact, and demanded the citation be dismissed. [Rowlett Decl. ¶ 16.] Sergeant McGrath refused to dismiss the citation. [Id.] Plaintiff alleges that at the time of his interaction with Rowlett, he was homeless and waiting for resources to become available at St. Vincent DePaul at 11:00 a.m. [SAC, Doc. 54, p. 32).] Plaintiff also asserts Rowlett harassed and illegally searched him on two prior unidentified occasions at the same location. [Id.; Castillo Decl.; Wilson Decl.]

2. The Car Accident on February 23, 2009

At approximately 10:50 p.m. on February 23, 2009, Plaintiff was driving in the right-hand lane traveling eastbound on National Avenue. [SAC, Doc. 54, p. 30.] He noticed a police car being driven by Officer Rowlett pulling up beside him in the left lane. Rowlett maintained the same speed as Plaintiff until they reached to the intersection of National Avenue and 16th Street. At that intersection, without any warning, Rowlett cut in front of Plaintiff from a left turn only lane. [Declaration of Douglas Miller in Support of Plaintiff's Opposition, Doc. 68, p. 162.] Plaintiff lost control of his car and crashed into a street lamp, receiving serious injuries. Plaintiff initially had no memory of the accident, but alleges his memory returned in March. After his memory returned, Plaintiff was shocked to learn the officers covered up what happened at the scene. [SAC, Doc. 54, p. 30.]

While Plaintiff was still at the UCSD Medical Center in Hillcrest, receiving treatment for his injuries, Plaintiff made the following statement to the investigating officer, Officer Witt: I got into my car to move it, but I'm not sure where. I was going down Imperial Avenue, that's the last thing I remember. I was driving and eating pizza. I could have been going to the corner store to get cigarettes, but I don't know. No one was in the car, but me. I really don't know what happened. [Traffic Collision Report prepared by Officer Witt, Exhibit B to Defendants' Motion, p. 13.] When Witt interviewed Plaintiff he noticed Plaintiff's eyes were bloodshot and "Stewart was slurring his words and having trouble forming his words." [Id.] Plaintiff's blood was drawn at the hospital and it tested positive for opiates, and 4 ng/mL of Morphine. [Bio-Tox Laboratories report dated March 2, 2009, Exhibit C to Defendants' Motion.]

Plaintiff's friend, Douglas Miller, who has submitted a declaration in opposition to Defendants' motion, gave the following statement to Officer Copeland after the accident: I was standing outside urinating when I heard a crash. I turned and saw my friend, Mike, in a car that had hit a pole. I walked over and asked if he was okay? He said that he needed to get some sleep. I told him to get in the back seat and I moved his car for him. [Traffic Collision Report prepared by Officer Copeland, Exhibit D to Defendants' Motion, p. 5.] At the time of the accident on February 23, 2009, Rowlett was assigned to the Central Division, working in full uniform and patrolling in a two officer unit with Officer Rex Cole. [Rowlett Decl. ¶ 17.] Rowlett states she was not involved in an accident with Plaintiff and did not see the collision. [Id. ¶ 18.] On the evening of the accident, Rowlett and her partner, Rex Cole, transported a female prisoner to Las Colinas Jail in Santee for booking at 8:50 p.m. [Declaration of Rex Cole ("Cole Decl.," ¶ 7.] After booking the female prisoner into Las Colinas, Rowlett and Cole returned to San Diego. At 10:02 p.m., the two were parked at 8th Avenue and J Street writing reports. [Cole Decl., ¶ 8.] The San Diego Police Department ("SDPD") Global Mapping System ("GPS") confirms that Rowlett's SDPD vehicle was parked at 8th Avenue and J Street with six other SDPD police units at about the time the incident occurred. [Declaration of Joseph Maggio in Support of Motion ("Maggio Decl."), Exhibit F to Defendants' Motion, ¶ 10.] At 10:56 p.m., Rowlett and Cole received a radio message regarding an accident involving Plaintiff. [Cole Decl., ¶ 9.] The GPS records further indicate no SDPD marked police vehicle was in the area of National Avenue and 16th Street at the time of Plaintiff's accident. [Maggio Decl., ¶ 8.] Procedural History Plaintiff originally filed his Complaint in San Diego County Superior Court on April 15, 2009, naming Officer Rowlett and the City of San Diego as Defendants. The City of San Diego removed the action on April 22, 2009. [Doc. 1.] Defendants moved to dismiss the Complaint [Doc. 5], and Plaintiff responded by seeking leave to amend. [Doc. 9.] The Court granted Plaintiff leave to amend and denied as moot the City's motion to dismiss. [Doc.17.] Plaintiff filed his first amended complaint on June 30, 2009, naming numerous additional individual officers as Defendants. [Doc. 18.] Defendants City of San Diego and Rowlett filed an answer on July 7, 2009. [Doc. 19.] Plaintiff served the remaining individual officer Defendants in July and August of 2010, after the Court set the matter for a hearing under Fed. R. Civ. P. 4(m).

On August 9, 2010, Plaintiff filed a Second Amended Complaint ("SAC"). [Doc. 54.] All Defendants filed an answer to the SAC on August 24, 2010. [Doc. 57.] Plaintiff attempted to file a Third Amended Complaint on September 10, 2010, but the Court rejected the document because Plaintiff did not seek prior leave of Court. [Docs. 58 and 59.] Defendants filed the current motion for summary judgment on September 10, 2009. In response, Plaintiff has filed a number of documents. [Docs. 68, 77, 80.] In addition, Plaintiff has filed a motion for leave to add a cause of action for retaliation. [Doc. 71.] Just prior to the hearing on Plaintiff's motion, Magistrate Judge McCurine held a hearing on two pending discovery motions filed by Plaintiff [Docs. 73 and 75]. Judge McCurine ordered Officer Rowlett and her partner to both provide Plaintiff with declarations regarding their whereabouts one hour before and one hour after the incident and identify the location of Rowlett's squad car for that same time period. Judge McCurine also ordered Officer Rowlett to provide a declaration that she did not seek medical attention and was not injured on the date of the incident. Finally, Judge McCurine ordered Defendant to produce, for in camera review, Officer Rowlett's personnel records. [Doc. No. 84.] Defendants filed the declarations required by Judge McCurine's order on November 8, 2010 [Doc. 86]. Following in camera review, Judge McCurine ordered Defendant to produce certain documents from Officer Rowlett's personnel file. [Doc. No. 88.]*fn3

Legal Standard Summary judgment is proper where the pleadings and materials demonstrate "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material issue of fact is a question a trier of fact must answer to determine the rights of the parties under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

The moving party bears "the initial responsibility of informing the district court of the basis for its motion." Celotex, 477 U.S. at 323. To satisfy this burden, the movant must demonstrate that no genuine issue of material fact exists for trial. Id. at 322. Where the moving party does not have the ultimate burden of persuasion at trial, it may carry its initial burden of production in one of two ways: "The moving party may produce evidence negating an essential element of the nonmoving party's case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). To withstand a motion for summary judgment, the non-movant must then show that there are genuine factual issues which can only be resolved by the trier of fact. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 738 ...


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